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October 5, 2013

Noting the shame of prison rape in incarceration nation

David Kaiser and Lovisa Stannow have this notable new article in the latest issue of The New York Review of Books headlined "The Shame of Our Prisons: New Evidence." Here is how it begins:

As recently as five years ago, American corrections officials almost uniformly denied that rape in prison was a widespread problem. When we at Just Detention International — an organization aimed at preventing the sexual abuse of inmates — recounted stories of people we knew who had been raped in prison, we were told either that these men and women were exceptional cases, or simply that they were liars. But all this has changed.

What we have now that we didn’t then is good data. The Bureau of Justice Statistics (BJS), an agency within the Justice Department, has conducted a series of studies of the problem based on anonymous surveys that, between them, have reached hundreds of thousands of inmates. Those who agreed to take the surveys, without being informed in advance of the subject, spent an average of thirty-five minutes responding to questions on a computer touchscreen, with synchronized audio instructions given through headsets. The officials in charge either positioned themselves so they couldn’t see the computer screens or left the room.

The consistency of the findings from these surveys is overwhelming. The same factors that put inmates at risk of sexual abuse show up again and again, as do the same patterns of abuse involving race and gender, inmates and guards. Prison officials used to say that inmates were fabricating their claims in order to cause trouble. But then why, for example, do whites keep reporting higher levels of inmate-on-inmate sexual abuse than blacks? Is there some cultural difference causing white inmates to invent more experiences of abuse (or else causing blacks to hide what they are suffering)? If so, then why do blacks keep reporting having been sexually abused by their guards at higher rates than whites? The more closely one looks at these studies, the more persuasive their findings become. Very few corrections professionals now publicly dispute them.

The BJS has just released a third edition of its National Inmate Survey (NIS), which covers prisons and jails, and a second edition of its National Survey of Youth in Custody (NSYC). These studies confirm some of the most important findings from earlier surveys — among others, the still poorly understood fact that an extraordinary number of female inmates and guards commit sexual violence. They also reveal new aspects of a variety of problems, including (1) the appalling (though, from state to state, dramatically uneven) prevalence of sexual misconduct by staff members in juvenile detention facilities; (2) the enormous and disproportionate number of mentally ill inmates who are abused sexually; and (3) the frequent occurrence of sexual assault in military detention facilities.

According to the latest surveys, in 2011 and 2012, 3.2 percent of all people in jail, 4.0 percent of state and federal prisoners, and 9.5 percent of those held in juvenile detention reported having been sexually abused in their current facility during the preceding year. (Jails, which are usually run by county governments, typically hold people who have recently been arrested and are awaiting trial or release, or else serving sentences of less than a year; prisons are for those serving longer sentences.) The rate of abuse in prisons is slightly lower than has been reported in previous years, but the difference is too small to be statistically significant. For those in jail, the number has not shifted at all. The rate of abuse in state-run juvenile facilities has declined significantly since the 2008–2009 youth survey, in which 12.6 percent of juveniles reported sexual victimization. However, this finding doesn’t have much impact on the total number of people victimized since many fewer are held in juvenile detention than in prisons and jails.

October 4, 2013

Ohio adopts new execution protocol to get needed drugs from compounding pharmacies

As reported in this local article, Ohio has yet another new execution protocol as of this afternoon. Here are the details:

Ohio’s revised execution policy maintains use of pentobarbital, a drug that is in short supply, but allows to the state get it from a new source: compounding pharmacies.
The revised policy [available here], released this morning by Ohio Department of Rehabilitation and Correction, makes no major changes other than the source of the drugs used.

The policy does not directly address the critical issue of the shortage of pentobarbital, the single drug currently used in executions. The state used what it said was the last of its supply of the drug in executing Harry Mitts Jr. of Cuyahoga County on Sept. 25.

However, it now says that pentobarbital, and the backup drugs, Midazolam, a sedative, and Hydromorphone, a strong opiate, can all be obtained from a “manufacturer, distributor or compounding pharmacy.” The state has been buying from manufacturers or distributors, but not compounding pharmacies.

Such pharmacies doing customized preparation and mixing of chemicals, usually to meet specific needs of patients or clients.
However, several other states — mostly recently Texas just this week — have turned to the compounding pharmacies because manufacturers of pentobarbital refuse to sell it to states that use it for executions. Colorado, Pennsylvania and South Dakota have either obtained or investigated buying drugs from compounding pharmacies....

Compounding pharmacies have come under fire in recent years because of problems with drugs, including a 2012 outbreak of fungal meningitis that killed 63 people and sickened hundreds, according to the federal Centers for Disease Control and Prevention.

Since 1999, when Ohio resumed executions, prison officials have used three drugs, singly and in combination, for lethal injections.
State officials said in a federal-court filing in August that the switch to a new execution protocol was necessary because the state’s supply of pentobarbital was running out.

As reported in this AP article, headlined "3 Lifers Win Ruling in Juvenile Sentencing Case," the Third Circuit yesterday handed down an important, but nuanced, ruling concerning the retroactive application of the Supreme Court's Eighth Amendment ruling in Miller concerning mandatory LWOP sentencing for juvenile offenders. Here is a summary of the ruling and some initial reactions thereto via the AP:

Three men who have been serving life sentences since they were juveniles won a fresh chance to convince judges they deserve to be resentenced under a decision Thursday by the federal appeals court based in Philadelphia.

The 3rd U.S. Circuit Court of Appeals said there was at least some reason to think last year's U.S. Supreme Court decision in the case of Miller v. Alabama, throwing out mandatory life without parole sentences for juveniles, should be applied retroactively.

The court stressed its decision is tentative and made under a standard that means there is enough possible merit to warrant a full exploration of the matter. The defendants must still convince the district judges they should be resentenced.

Defendants Michael J. Pendleton and Franklin X. Baines are in Pennsylvania prisons, while defendant Corey Grant is serving life in New Jersey.

Baines' lawyer, David R. Fine, said the decision means the appeals court "agreed there's at least an argument that Miller is retroactive."
Baines is "going to have to convince that judge that Miller applies retroactively," Fine said. "And if he convinces the judge of that, obviously, there can be appeals."

The opinion noted a split in similar decisions being made by other federal circuit courts across the country, and Tasha Jamerson, a spokeswoman for the Philadelphia district attorney's office, called it an issue "that will be finally resolved by the United States Supreme Court."

Her counterpart in Pittsburgh said the Allegheny County district attorney's office might appeal to the U.S. Supreme Court.
"We're going to talk to Philadelphia," said Mike Manko, spokesman for Allegheny County District Attorney Stephen Zappala. "They had a co-filing, and we'll see what the best thing to do is at this point."

Grant's lawyer, David B. Glazer, said the next step will probably be a scheduling order by the district judge, possibly including a requirement for legal briefs. He said Grant was convicted of a drug-related murder that occurred a few days after his 16th birthday.
"It's one of the hurdles along the way," Glazer said. "We're just excited about the possibility of getting him back to court."

Pendleton's lawyer, federal public defender Lisa Freeland, said she was very happy with the decision. Her client was convicted of second-degree murder for the 1997 shooting death of a Pittsburgh jitney driver during a robbery, according to a magistrate judge's report in his federal court file.
"We still have a ways to go, but this is a necessary first step to getting relief for Mr. Pendleton," Freeland said.

The panel opinion from the Third Circuit in these consolidated cases is available at this link; here are key excerpts:

In Miller v. Alabama, 132 S. Ct. 2455, 2460 (2010), the Supreme Court held that “mandatory life without parole for those under the age of 18 at the time of their crimes violates the Eighth Amendment's prohibition on 'cruel and unusual punishments.'” Corey Grant, Franklin X. Baines, and Michael J. Pendleton (collectively, “Petitioners”), each of whom claims to be serving a mandatory sentence of life without the possibility of parole for offenses committed as juveniles, seek our authorization to file successive habeas corpus petitions under 28 U.S.C. §§ 2254 (for Baines and Pendleton) and 2255 (for Grant) to raise Miller claims. Both Baines and Pendleton were convicted in state court in Pennsylvania, and Grant was convicted in federal court in New Jersey....

Because of the circuit split noted by the Third Circuit (which has a notable north/deep south quality to it), the Supreme Court is surely likely to take up this issue in some form at some point in the not too distant future.

October 3, 2013

Guess which state has the highest rate of incarceration of black men in the entire US?

Click through to see the somewhat surprising answer...

This NPR story answers the question in the title of this post. The piece is headlined "Wisconsin Prisons Incarcerate Most Black Men In U.S.," and it starts this way:

The United States prison population is still the world's highest, with more than 1.5 million people behind bars. Black men are more likely to be sent to prison than white men, and often on drug offenses. A study from the University of Milwaukee-Wisconsin looked at that state's incarceration rates and found they were the highest in the country for black men.

The University of Wisconsin researchers say their analysis was truly eye-opening. They found that Wisconsin's incarceration rate for black men — 13 percent — was nearly double the country's rate.

"We were so far above everybody else. That just sort of stunned us when we saw that," says Professor John Pawasarat, who studied two decades of Wisconsin's prison and employment data.

Pawasarat found that nearly 1 in 8 black men of working age in Milwaukee County had served some time in the state's correctional facilities. At 13 percent, the rate was about 3 percentage points above Oklahoma's — the state with the second highest rate of incarceration for black males. (Gene Demby wrote about this same topic and noted that Wisconsin also has the highest rate of Native American men who are behind bars. One in 13 Indian men are incarcerated.)

Thanks to a number of helpful readers, I have not missed the news of a notable sentencing ruling by a Second Circuit paenl today in US v. McLaurin, No. 12-3514 (2d Cir. Oct. 3, 2013) (available here). Here is how the opinion starts:

David McLaurin, a convicted sex offender, was required by federal law to register any change in his address. He failed to do so and, following his guilty plea, was sentenced in the United States District Court for the District of Vermont to fifteen months’ imprisonment and five years of supervised release. As a condition of his release, McLaurin was required to “participate in an approved program of sex offender evaluation and treatment, which may include . . . plethysmograph examinations, as directed by the probation officer.” Judgment, United States v. McLaurin, No. 11 Cr. 113 (WKS), Dkt. No. 28 (D. Vt. Aug. 22, 2012), J. App. 9.

This examination involves the use of a device know as a plethysmograph which is attached to the subject’s penis. In some situations, the subject apparently may be required, prior to the start of the test, to masturbate so that the machine can be “properly” calibrated. The subject is then required to view pornographic images or videos while the device monitors blood flow to the penis and measures the extent of any erection that the subject has. The size of the erection is, we are told, of interest to government officials because it ostensibly correlates with the extent to which the subject continues to be aroused by the pornographic images.

McLaurin objected to this requirement as unnecessary, invasive, and unrelated to the sentencing factors specified in 18 U.S.C. § 3553(a) and therefore impermissible as a discretionary condition of supervised release. See 18 U.S.C. § 3583(d)(1). The district court nonetheless imposed the requirement without reference to the statutory goals of supervised release or to any expected benefits to the public or to McLaurin. McLaurin now appeals.

We hold that this extraordinarily invasive condition is unjustified, is not reasonably related to the statutory goals of sentencing, and violates McLaurin’s right to substantive due process. We therefore vacate the condition.

"Risk Redux: The Resurgence of Risk Assessment in Criminal Sanctioning"

The title of this post is the title of this new paper available via SSRN and authored by John Monahan and Jennifer Skeem. Here is the abstract:

After almost four decades of “just deserts,” the past several years have seen a remarkable resurgence of risk assessment as an essential component of criminal sanctioning. In this article, we review current practice in the incorporation of risk assessment into the sanctioning systems of several illustrative states, and describe the major dimensions on which state practices differ. We then elaborate the various meanings ascribed to the foundational concept of “risk” in criminal sanctioning, and contrast “risk” with what are now often called “criminogenic needs,” the fulfillment of which ostensibly reduce an offender’s level of “risk.” Finally, we address the choice of an approach to risk assessment in sentencing, particularly in the resource-starved state of current correctional practice.

Some more recent highlights from "Marijuana Law, Policy and Reform"

As I noted last month, in this space I have posted much less on marijuana law and reform issues as a result of the fact that my work on this topic is now being principally channeled to my new blog Marijuana Law, Policy and Reform. While I continue to urge everyone who is especially interested in drug policy reform topics to regularly check out my work over there, I also want to continue posting links to sets of posts from my MLP&R blog here in order to generate additional discussion and cross-pollination.

Over the last few weeks I have been focused on recreational marijuana reform over at my MLP&R blog (in conjunction with my coverage of these topics in the "Marijuana Law, Policy & Reform" seminar I am teaching this semester). Here are links to a few major recent posts in this series:

Should downloading a few pics of child porn result in attorney's disbarment?

The question in the title of this post concerning a notable collateral consequence of some convictions is prompted by this fascinating cover story from the October 2013 issue of the California Lawyer magazine. (Hat tip: How Appealing.) The story is headlined "Unfit to Practice? The state Supreme Court must decide whether a lawyer's possession of child pornography requires summary disbarment," and here is how the piece begins:

Gary Douglass Grant is a lawyer with a big problem.
In 2007 the civil litigator and former captain in the Army Reserves, now 56, was a JAG lawyer assigned to Los Alamitos Army Airfield when an Immigration and Customs Enforcement (ICE) operation in Virginia tracked hits on approximately 18 commercial child pornography websites. ICE agents in Project Flicker, as it was known, located a number of active and retired military members, civilians, and contractor employees - several of whom had Top Secret or higher clearances - who allegedly used their military email addresses to register for PayPal accounts to access the images.

One of the 16 individuals identified that summer was Gary Grant. A search of computers at his Aliso Viejo home revealed that he had sent over the Internet an image depicting minors engaged in sexually explicit conduct; Orange County sheriff's deputies arrested him a year later. Investigators had found that between 2001 and 2007 Grant accumulated more than 100,000 digital pornographic images, much of it legal adult material. But mingled among those images were pornographic pictures of children. An analyst who examined the seized files found 19 photos and a videotape of youths who appeared to be between 14 and 16 years old - "possibly minors."

The Orange County District Attorney charged Grant with three counts of California Penal Code section 311.11(a), possession of obscene matter of a minor in a sexual act. Prosecutors gave Grant and his lawyer a CD with at least 100 sexual images of children retrieved from Grant's computers.

From the outset, Grant gave specific orders to his criminal defense attorney: "Defend this to the nth degree, because no way, no how, did I knowingly possess child pornography."

Ultimately, though, Grant conceded there were sexual images of underage girls on his computer. He said he had found the photos repugnant and deleted them. But even deleted images may remain on a hard drive, and that's where forensic computer analysts in this case located them. In April 2009 Grant admitted he had temporarily possessed two "unsolicited electronic images" of children, received by email while he was downloading other pornography. He pleaded guilty to one count of felony possession; prosecutors agreed to drop the other two charges. The judge sentenced Grant to 90 days in jail and three years of probation, and ordered him to register as a sex offender for the rest of his life. He did not appeal his conviction or sentence.

Grant joined a twelve-step fellowship known as Sex and Love Addicts Anonymous. But by autumn he had violated the terms of his probation by downloading adult pornography to his computer and by "sex-texting" two former girlfriends. The violations brought Grant an additional 183 days of jail time - more than twice his original sentence.

Based on the felony conviction, the State Bar of California automatically placed Grant on interim suspension pending further disciplinary proceedings. A State Bar Court trial judge later recommended that Grant be disbarred because his felony involved moral turpitude. His lawyer challenged that characterization, and the severity of the discipline. When the Review Department recommended only a suspension, the prosecutors appealed. Now Grant's case is pending before the state Supreme Court, where it has been fully briefed and awaits oral argument. (In re Grant, No. S197503 (Cal. Sup. Ct).)

At issue is the State Bar's ability to exact the ultimate sanction - disbarment - pursuant to a summary procedure that permits neither consideration of mitigating factors nor whether that sanction is appropriate. What began as one man's compulsion to accumulate pornography has become a challenge to the moral-turpitude-per-se standard, and the State Bar's procedures associated with it. Ultimately the Grant case could result in changes to disciplinary proceedings that affect hundreds of matters.

October 2, 2013

"The 2% Death Penalty: How a Minority of Counties Produce Most Death Cases at Enormous Costs to All"

The title of this post is the title of this new report released today by the Death Penalty Information Center. Here are excerpts from this report's executive summary:

Contrary to the assumption that the death penalty is widely practiced across the country, it is actually the domain of a small percentage of U.S. counties in a handful of states. The burdens created by this narrow but aggressive use, however, are shifted to the majority of counties that almost never use it.

The disparate and highly clustered use of the death penalty raises serious questions of unequal and arbitrary application of the law. It also forces the jurisdictions that have resisted the death penalty for decades to pay for a costly legal process that is often marred with injustice.

Only 2% of the counties in the U.S. have been responsible for the majority of cases leading to executions since 1976. Likewise, only 2% of the counties are responsible for the majority of today’s death row population and recent death sentences. To put it another way, all of the state executions since the death penalty was reinstated stem from cases in just 15% of the counties in the U.S. All of the 3,125 inmates on death row as of January 1, 2013 came from just 20% of the counties.

Each decision to seek the death penalty is made by a single county district attorney, who is answerable only to the voters of that county. Nevertheless, all state taxpayers will have to bear the substantial financial costs of each death penalty case, and some of the costs will even be borne on a national level.

The counties that use the death penalty the most have some of the highest reversal rates and many have been responsible for errors of egregious injustice. As their cases are reversed, more money will be spent on retrials and further appeals....

Some states have recently chosen to opt out of this process altogether, greatly limiting their obligations for its high costs and disrepute. As the death penalty is seen more as the insistent campaign of a few at tremendous cost to the many, more states may follow that course.

NY Times editorial laments "Writing Off Lives"

The New York Times earlier this week ran this editorial headlined "Writing Off Lives" to complain about the modern (over)use of LWOP sentences. Here are excerpts:

[T]he number of people in prison for life has more than quadrupled since 1984 and continues to grow at a startling pace. The zealous pursuit of these sentences began in the 1970s, becoming something of a fad; it is past time to revisit the practice.

A new study from the Sentencing Project, a research group, found that one in nine inmates, about 160,000 people, is serving a life sentence. Nearly one-third of these prisoners are serving life without parole. Many of these lifers were convicted of nonviolent crimes or of crimes that occurred before they turned 18.

For much of the 20th century, a sentence as harsh as life without parole was rarely used. Instead, a person sentenced to “life” — for murder, say — could be released after 15 years when the parole board determined that he or she had been rehabilitated and no longer posed a threat. This began to change during the drug war years. Harsher sentences once reserved for people convicted of capital crimes were expanded to include robbery, assault and nonviolent drug offenses. States restricted the use of parole and governors who feared being portrayed as soft on crime began to deny virtually all clemency requests.

Research shows lengthy sentences do nothing to improve public safety. But these long sentences are turning prisons into geriatric centers where the cost of care is prohibitively high. The practice of routinely locking up people forever — especially young people — also ignores the potential for rehabilitation. The whole trend is deeply counterproductive. States need to encourage more rational sentencing, restore the use of executive clemency and bring parole back into the corrections process.

While October 1, 2013 was an eventful day around the nation with the roll-out of the new federal health care law and the partial federal government shut down. But in Alabama, the start of October 2013 was also a big deal because it was the effective date for the application of new sentencing reforms. And, in sharp contrast to the federal sentencing system where applicable guidelines are distinctly harsh and draw the ire mostly of defense attorneys, under Alabama's new more lenient guidelines, it is the prosecutors who are complaining about judges having to follow presumptive sentencing rules.

This local article, headlined "More Alabama nonviolent offenders may avoid prison under law now in effect, DAs not happy," explains the new Alabama sentencing world and the concerns being expressed by prosecutors about having judges having to follow sentencing laws they disfavor:

Thieves, small-time drug dealers, repeat drug-users and other nonviolent offenders will find the world has changed beginning today, as Alabama tries to cope with its bursting-at-the-seams prison system by being more “selective” about who gets locked up.

Starting today new sentencing guidelines cover many nonviolent theft and drug charges. Burglary and drug trafficking charges are not on the list, but Alabama’s habitual offender laws that led to long sentences after two or more prior felonies will no longer automatically result in decades-long prison sentences for nonviolent offenders.

There are numerous changes, but the key differences are that judges in most cases are expected to use a worksheet to guide the decisions about “in or out of prison” and “how long a sentence.”

There have been complaints by prosecutors and some judges that the guidelines take the court’s discretion out of the system.
The guidelines were developed beginning in 2000 and went into effect in 2006 as “voluntary.” But guideline use varied widely around the state, said Bennet Wright, executive director of the Alabama Sentencing Commission. In 2012, the Alabama Legislature agreed to make the guidelines “presumptive” meaning they would be applied unless compelling reasons were found to deviate from the guidelines.

Madison County District Attorney Rob Broussard said in a purely theoretical world, his office would oppose the new sentencing system.
“But in the practical, budget-driven world, we understand why we have them,” Broussard said. “In this state, as in a lot of jurisdictions, we can about talk justice and what something is worth until we’re blue in the face, unfortunately it’s a money game. Do you have space to house criminals or not?”

Wright said prison costs and issues of fairness have driven the new process.
“Alabama has the most overcrowded prison system in the country,” he said. “There is a very serious funding issue, coupled with an overcrowding issue and something has to be done. The state has to be increasingly more selective about which nonviolent offenders are sentenced to prison.”

Defendants facing similar charges across the state were not getting the same sentences, an issue that the Sentencing Commission has long been concerned about, Wright said.
“The commission’s goal was to eliminate as much unwanted disparity as possible and create as much uniformity statewide as possible,” he said. “There has not been a lot of uniformity statewide amongst similar cases. You could have neighboring counties -- whether urban or rural, some in the same courthouse -- with judges using different practices. It was varied across the state, and a lot of people’s reactions have been, ‘That’s why it’s presumptive now.’
It’s an issue of fundamental fairness.”....

The Alabama District Attorneys Association has also been critical of the changes, arguing the rules will limit prosecutors’ ability to punish repeat offenders. St. Clair County District Attorney Richard Minor, president of the Alabama District Attorneys Association, said the association is working on proposed legislation for changes to the law.

Minor said the DA’s would like to see multiple charges in a drug distribution case be counted individually in the guidelines, rather than as one sentencing event which could lessen the likelihood of prison. Minor said he’s also concerned by what the worksheet requirements leave out.

“I think it’s hard to determine someone’s criminal behavior and their ability for rehabilitation, based on numbers on a sheet of paper,” Minor said. “I think a DA’s office and judge in the community have more information than can be put down on paper.”

I find it so very telling that when states create sentencing guidelines which generally push judges away from long prison terms (unlike the federal guidelines which general push judges toward long prison terms) we hear state prosecutors complaining that use of guidelines at sentencing does not capture all the unique facets of offenses and offenders. This provide for me still more proof that the severity of applicable rules is what really shapes the litigants perspectives as to whether sentencing guidelines should be presumptive or merely advisory.

For lots of reasons, and perhaps especially because Alabama's sentencing laws are evolving in kind of the reverse concerning how federal sentencing laws evolved over the last 25 years, I think sentencing reformers ought to be studying Alabama sentencing reforms past, present and future very closely. Helpfully, as the state starts a new sentencing reform chapter, the local papers have all this notable new coverage of developments:

Australia's top court rules on the importance of disadvantaged background at sentencing

This article from down under, headlined "Indigenous disadvantage does not diminish over time, High Court rules," reports on an interesting sentencing ruling from the other side of the globe. Here are the details:

Disadvantage caused by a person's Indigenous heritage does not diminish over time and should be taken into account in sentencing of criminal offences, the High Court has found.

Lawyers for William Bugmy, a 31-year-old from Wilcannia convicted of assaulting a guard inside Broken Hill prison in 2011, had asked the court to consider principles for recognising Indigenous disadvantage in sentencing.

Bugmy, who has been been in and out of jail since he was 13, was initially handed a reduced sentence for his offence because of the severe disadvantage he had suffered as an Indigenous man over a prolonged period.

The New South Wales Criminal Appeals Court recognised the so-called Fernando Principles, which take into account an offender's Aboriginal, cultural and social background, but the Crown appealed against the decision.
The judge of the court ruled the Fernando Principles diminish over time, particularly for repeat offenders, and added another year and a half to his sentence.

But today the High Court overturned that decision, finding that a long criminal record does not diminish the extent to which Aboriginal disadvantage can be taken into account -- a key element of the case.

The High Court heard Bugmy had grown up in a home where alcohol abuse was common. He had seen his father stab his mother 15 times.
Felicity Graham from the New South Wales Aboriginal Legal Service says Bugmy has suffered from a series of disadvantages throughout his life....

Ms Graham says the court's decision was being watched closely by Indigenous Australians and lawyers around the country.
Ms Graham says the court's ruling could bring down the number of Indigenous Australians in prison.

"The High Court has directed sentencing courts to give full weight to the background factors relating to Aboriginality and social disadvantage and so this certainly could have an impact on the trends of over-representation of Aboriginal people in the criminal justice system," she said.

Bugmy's aunt Julie travelled to Canberra for the hearing and told the ABC she hoped any reduction in her nephew's sentence would set a precedent.
"The outcome I'm hoping will be for all Aboriginal people," Ms Bugmy said.
"It's not just about William and growing up in Wilcannia.
You've got the Aboriginal disadvantage: it's there for health, work, employment -- there's no employment."

October 1, 2013

Unusual (and cruel)?: two distinct life sentences from the same judge

The title of this post is my attempt to put a humurous spin on this notable local story, headlined "Judge sentences killer, performs wedding," involving a defendant having two notable (and surely life changing) experiences on one sentencing day this week. Here are the details:

For Danne Desbrow, Sept. 17 was a day with some bad news, and some good news.

First, the bad.
He was sentenced to 53 years to life in prison by San Diego Superior Court Judge Patricia Cookson, after being convicted of the murder of another man in Lemon Grove a decade ago.

Then, the good: He got married — by the same judge who had sentenced him to decades behind bars just a few minutes earlier.
And he got a slice of cake to eat in the courtroom too, baked by the judge herself.

The wedding ceremony, which came minutes after what several witnesses described as an emotional sentencing hearing, was highly unusual. Judges frequently marry people, and occasionally perform marriage ceremonies for people in custody. But doing so in the courtroom after sending the groom to a lifetime behind bars is pretty much unheard of....

For Desbrow’s lawyer, whose motions for a new trial and a delay in sentencing were abruptly rejected by Cookson at the start of the court hearing, the entire event was surreal.
“I didn’t know it was going to happen,” said defense attorney Steve Cline. “Obviously, it was an unusual day from start to finish. I mean, I appreciate that she honored the request for them to marry. But, I’ve never seen anything like that.”

Desbrow, 36, was sentenced for the killing of Kevin Santos in 2003. Deputy District Attorney Joe McGlaughlin said the case went unsolved for years until a witness came forward and gave key information pointing to Desbrow.
Cline said the defense argued the case was not murder but that Desbrow was defending himself in a fight. After a two-month trial, jurors convicted Desbrow of first-degree murder.

It was during the trial that Danne Desbrow popped the question to his wife-to-be, Destiny, 33. She said in an interview they had begun dating when she was 16, but when she got pregnant the two lost contact.

Last year she said her son wanted to meet his father. Using social media, she was able to track down Desbrow’s family and in January they met for the first time in years — when Danne Desbrow was in jail awaiting trial.

Regular visits followed and Destiny sat through each day of the trial. After the proposal she said she called Cookson’s chambers and asked if the judge would marry them at sentencing.
“She called me back and sad yes, she would,” Destiny Desbrow said, adding she was somewhat surprised the judge agreed. The judge’s secretary even called two days ahead of time to make sure everything was in order — rings, notary, documents.

So, after sentencing Danne Desbrow to two consecutive 25-year to life terms (one for the use of a gun in the murder) and another three years for threatening a witness, Cookson concluded the hearing. Members of Santos’s family, who had spoken angrily to Desbrow, were escorted out of the courtroom, according to two people who saw the wedding....

“That is something that does not happen with great regularity,” said Jan Caldwell, a spokesman for Sheriff Bill Gore, who oversees the county jail system. “I’ve never heard of it.”

Weddings in jail are not uncommon, she said. They occur with some frequency during regular visiting hours. Newlyweds have to get their own justice of the peace, and the vows are exchanged through the glass separating visitors from inmates.

Desbrow intends to appeal the murder conviction. He remains in county jail pending another court hearing on a separate case in October.
His wife remains hopeful.
“I have faith God is going to bring him home,” Destiny Desbrow said.

Will government shutdown have any big impact on the federal criminal justice system?

As reported in this Washington Times article, Attorney General Eric Holder made some headlines yesterday by lamenting the impact of political dysfunction inside the Beltway. Here are some details:

Some FBI agents and federal prosecutors face furloughs if the government shuts down Monday night, and Attorney General Eric H. Holder Jr. said he would take a voluntary pay cut because of political “dysfunction.”

“People are trying to make a political point, and I’m trying to run a Justice Department,” Mr. Holder told reporters Monday. “We’re trying to keep the American people safe. We’re trying to keep crime down. We’re trying to go after financial crimes. There are a whole range of things that we are simply trying to do.”

The nation’s top law enforcement official said Justice Department officials were still evaluating how many furlough notices to send out in the event that Congress and the White House fail to reach a temporary budget deal before midnight Monday.
“It is entirely possible that we will have to put on furlough FBI agents, prosecutors as a result of … the dysfunction that exists primarily in the House,” Mr. Holder said. “That is going to have a disruptive impact on the work of the Justice Department.”

He said he would take a pay cut in solidarity with furloughed employees.
“As I’ve made clear to the people in this department, we are all in this together, and whatever pain they suffer, I will share with them,” Mr. Holder said.

Based on other reports and what federal judges and defense attorneys have been saying, I surmise that the sequester continues to have a bigger impact on the day-to-day work of the federal criminal justice system than a short-term government shutdown. But I surmise that various difficulties created by budget cut backs are likely to be exacerbated by this latest round of political posturing.

More broadly, I cannot help be think and fear that the momentum building for statutory sentencing reforms must be getting slowed down as a result of all the Beltway bickering. The optimist in me hopes that when this latest budget crisis passes, legislators will be eager to make peace by passing some bi-partisan legislation such as the Justice Safety Valve Act and/or the Smarter Sentencing Act. But my pessimistic side fears that these folks will have a hard time agreeing on anything in the weeks and months ahead.

In many situations of family dysfunction stemming from poverty, the interests of parents are in conflict with the interests of their offspring. This presents a dilemma for liberals. We want to mitigate the harsh consequences and suffering that conditions we deem unjust have caused some adults, especially adults of minority race. But we are also concerned about the welfare of children born into impoverished and troubled communities. The predominant liberal response to this dilemma has been to sidestep it by ignoring or denying the conflict and to then take positions aimed at protecting parents’ interests, without giving serious attention to the impact on children. The result is a set of liberal polies that effectively imprison black children in dysfunctional families and communities and so ensure that they fall into the inter-generational cycle of poverty, addiction, and criminality.

Epitomizing this phenomenon is the fast-growing phenomenon of states’ placing newborn children, predominantly of minority race, into prison to live for months or years with their incarcerated mothers. Advocates for incarcerated women, not advocates for children, have promoted prison nurseries, and they have done so with no research support for any hope of positive child welfare outcomes. Conservative legislators and prison officials agree to experiment with such programs when convinced they will reduce recidivism among female convicts, a supposition that also lacks empirical support. Remarkably, states have placed babies in prisons without anyone undertaking an analysis of the constitutionality of doing so.

This Article presents a compelling child welfare case against prison nurseries, based on rigorous examination of the available empirical evidence, and it presents the first published analysis of how constitutional and statutory rules governing incarceration and civil commitment apply to housing of children in prisons. It shows that prison nursery programs harm the great majority of children who begin life in them, and it argues that placing infants in prison violates their Fourteenth Amendment substantive and procedural due process rights as well as federal and state legislation prohibiting placement of minors in adult prisons.

This Article further challenges liberal family policy more generally. Its final Part describes other policy contexts in which liberal advocacy and scholarship relating to persons who are poor or of minority race consistently favors the interests of adults in this population over the interests of children. It offers a diagnosis of why this occurs, and it explains why this is both morally untenable and ultimately self-defeating for liberals committed to racial equality and social justice. The Article’s broader thesis is that liberals bear a large share of the responsibility for perpetuation of blacks’ subordination.

September 30, 2013

How common are DVD submissions as mitigation evidence as part of federal sentencing?

The question in the title of this post is prompted by a somewhat amusing discussion toward the end of a Ninth Circuit panel opinion released today in US v. Laurienti, No. 11-50294 (9th Cir. Sept. 30, 2013) (available here). The following passage from the opinion provides the context for the question:

Laurienti claims for the first time on appeal that the
district court committed plain error when it did not read the
last two pages of his sentencing memorandum or view a DVD
he had submitted. We review these contentions under the
same plain error standard applicable to his claim that the
district court did not listen to his evidence in mitigation. We
reject these contentions for two reasons.

First, the court provided Laurienti the opportunity to
present the substance of those materials during sentencing.
Laurienti did so, and the court listened to his position.[FN7]

Second, and more importantly, the court explained why
further considering those materials would not change its
decision. The court specifically stated that it had reviewed
numerous letters from Laurienti’s family, friends, and
business associates. The court did not, however, find these
materials persuasive in light of Laurienti’s apparent attempts
to avoid making restitution payments. Considering the
cumulative nature of the DVD, and the fact that the court
allowed Laurienti to discuss his sentencing position at length,
Laurienti has failed to establish that the court’s refusal to
consider the exhibits amounted to plain error requiring
reversal.

[FN7] We note in passing that the time that the attorneys and this court have
spent on the issue of the unread two pages and unwatched DVD was, in
all likelihood, far more extensive (and, for the parties, expensive) than if
the court had simply read and watched what was before it. As Benjamin
Franklin astutely observed, “An ounce of prevention is worth a pound of
cure.”

Under the circumstances, I am not suprised or troubled by the Ninth Circuit's resolution of this issue, though I can understand why a defendant might be both surprised and troubled that a judge at sentencing would report that he had not bothered to watch a DVD the defense team had created for the occassion. This, in turn, leads me to wonder if mitigation DVDs are common submissions by the defense in some federal courts or for some sets of defendants (and also whether judicial disregard of such DVDs submissions might also be common).

The late, and justly celebrated, William Stuntz made many contributions to the literature on criminal procedure. Among these is the arrestingly counter-intuitive thesis that the Warren Court’s pro-defense procedural rulings made a causal contribution to the “punitive turn” in the substantive criminal law. This article, contributed to a symposium on Criminal Justice at the Crossroads held at USC on June 7, 2013, and forthcoming in the Southern California Law Review, aims to test this thesis empirically.

Before the Warren Court, criminal procedure was not uniform across the states. Some were more liberal and some more conservative. The article argues that these differences set up natural experiments. We would expect the Warren Court’s decisions to provoke more powerful reactions in jurisdictions where local practice was more radically transformed. We can assess whether conservative jurisdictions increased the severity of the substantive law faster than counterpart jurisdictions with more liberal baseline procedures.

The article measures punitiveness according to an index of prisoners per homicide. It codes eight US jurisdictions as liberal or conservative in their pre-Warren Court criminal procedure. Generally similar jurisdictions with marked differences in their criminal procedure are then compared: liberal California with conservative New York, liberal Illinois with conservative Ohio, liberal Kentucky with conservative Maryland, and liberal DC with conservative Virginia. The data in general do not support Professor Stuntz’s claim that liberal procedural rulings encouraged more punitive substance.

Further study is warranted. The available evidence, however, does not suggest the existence of a general substance-procedure feedback loop that should cause judges, legislators, or law enforcement officials to hesitate to adopt otherwise justified reforms.

Advice for the US Sentencing Commission from former USDJ Nancy Gertner

I am genuinely unsure if the US Sentencing Commission gets to keep working if we end up having a federal government shut-down this week. But I am sure that the USSC starts an official new fiscal year as of tomorrow morning and that any government shut-down is not going to keep federal defendants from being sentenced and that the USSC will be up-and-running in some capacity both sooner and later. For those reasons, I am pleased right now to be able to post these comments sent my way by former federal district judge (and now Harvard law professor) Nancy Gertner about what the USSC ought to be doing as FY 2014 in the federal sentencing system gets underway:

At a time when the “common law of sentencing,” is being shaped in federal district courts, why does the Sentencing Commission only post Circuit Court decisions on its web site? In 2012, sentences that had been appealed on the grounds of unreasonableness were affirmed 95 percent of the time. And that rate has remained steady on the national level: In 2011, the affirmance rate was roughly 94 percent; in 2010 it was approximately 96 percent; and in 2009, 97 percent affirmances. In my circuit, the First Circuit, not a single sentence was deemed unreasonable on appeal in 2011 or 2012, and only a handful of cases qualified in the immediately preceding years. In effect, as with other areas of law where the standards of review are forgiving (think evidentiary appeals on forensic issues which are reviewed for “abuse of discretion” and rarely overturned), the appellate courts are not defining substantive sentencing standards, and imposing only minimal procedural ones.

Clearly most of the meaningful sentencing developments -- the substantive sentencing standards, the guideline analysis and trenchant critique -- are happening at the district court level in the decisions of judges like John Gleeson and Jack Weinstein (S.D.N.Y.), Mark Bennett (N.D. Iowa), Ellen Huvelle (D.C.), Paul Friedman (D.C.) and Lynn Adelman (E.D. Wisconsin). While not all judges take the time to write formal sentencing opinions, those that do should have their work circulated by our “expert” Commission rather than being ignored.

If the Commission is interested in minimizing disparity in sentencing in a post-Booker world (which should be one of its goals -- hardly the only one), what better way than to make certain that the opinions of district court judges are communicated more broadly to the federal bench? When these judges offer a reasoned analysis of the Guidelines or an alternative way of analyzing the cases, why not ensure that other judges see their work and decide whether to follow it? Other judges can look at their reasoning– not as binding precedent, but as a template for the cases they see, e.g. here’s one approach to firearms cases, non violent drug offenders, white collar cases, etc. If a common law of sentencing is ever to evolve -- supplementing (or in some cases supplanting) the Guidelines -- why not assist in its development? In a common law system, decisional law establishes standards. Uniformity is not enforced from above -- as in civil code countries -- but evolves from reasoned judicial decisions. In effect, with advisory Guidelines, we have a hybrid system -- Guidelines and decisional law.

To look at the Commission web site, there is only one orthodoxy -- the Guidelines, and Appellate Court decisions that rarely say much of anything. In fact, the message conveyed by the web site is that the Commission is not interested in uniformity as a general matter, just one kind of uniformity -- the uniform enforcement of its flawed product, the U.S. Sentencing Guidelines. Teach the Guidelines. Describe appellate court decisions affirming whatever the district courts do without meaningful analysis. Ignore the fine work of the judges trying to create meaningful standards where it counts the most, in the sentencing of individuals.

Detailing Florida's continuing struggle to deal with Graham and Miller

This lengthy and interesting local article, headlined "Lawmakers committed to solving juvenile sentencing," highlights how legislators in the Sunshine State have been struggling to fix its sentencing laws in the wake of two Supreme Court rulings concerning limits on LWOP sentences for juvenile offenders. Here are excerpts:

With the courts threatening to intercede, Florida lawmakers say they are committed to finding a solution to sentencing juveniles under U.S. Supreme Court rulings that restrict the use of life sentences.
The issue is likely to be a focal point of debate in next year’s legislative session and could affect two local cases.

But lawmakers have failed to find an agreement for the last three years, leaving Florida Supreme Court justices to suggest earlier this month that they could impose a parole system to review lengthy sentences for juveniles in light of the Legislature’s inaction....

Heading toward their 2014 session, lawmakers must address two groups of juvenile offenders.
One group is juveniles convicted of non-homicide crimes — for which the U.S. Supreme Court banned life sentences in 2010.
The other group is juveniles convicted of murder, who can be sentenced to life but their punishment must follow protocols outlined by the nation’s highest court in a 2012 ruling.

In the 2013 session, the sentencing legislation failed when [Sen. Rob Bradley, R-Fleming Island, a former state prosecutor] advanced a bill capping sentences at 50 years for non-homicide juvenile crimes and establishing a sentencing procedure for juvenile murderers, who would face a minimum 50-year sentence if they were not sentenced to life. But senators, who believed the bill was still too harsh, amended the bill in 20-19 vote, calling for a sentence review at 25 years for the juvenile offenders. In response, Bradley killed the legislation.

He and other lawmakers say they understand the frustration of the state’s highest court — where two cases are pending involving juveniles who received 70- and 90-year sentences for non-homicide crimes — but they said they hope to resolve the issue without putting the burden on the court....

Rep. Ray Pilon, R-Sarasota, who sponsored the House version of the sentencing bill, said he understood why the courts are not happy with the lack of legislative action.
“They’re pushing us to do something,” Pilon said. “I think it was kind of travesty that we couldn’t come to a compromise last year. I’m certainly hopeful that we do this year. It’s our responsibility.”

There has been tension between the Legislature and the court in recent years, with some legislative leaders suggesting the justices have intruded into the legislative arena. But some lawmakers say the failure to act on the juvenile sentencing would leave the court little choice.
“If we’re lawmakers we need to make the law,” said Rep. Dave Kerner, D-Lake Worth, a member of the House Criminal Justice Subcommittee, which would initiate the juvenile sentencing legislation. “We talk a lot about judges acting outside their authority. But it’s hard to blame them when we don’t write the laws.”...

Lawyers for an Orlando juvenile facing a 90-year sentence have suggested the state Supreme Court re-impose a parole system — which was abolished for non-capital crimes in 1983 and for all crimes in 1995 — to review lengthy juvenile sentences. In their questioning during oral arguments on the case, several justices talked about using the Parole Commission, which still exists to handle prisoners sentenced before parole was abolished.

But reviving the parole system would likely meet resistance from lawmakers.
“Parole has become a dirty word in Florida,” said House Criminal Justice Chairman Matt Gaetz, R-Fort Walton Beach. “I don’t know that there is enough momentum to sort of change that cultural shift that has occurred in our state.”

Nonetheless, lawmakers generally agree that they may have to come up with some review process for the non-homicide juveniles since the U.S. Supreme Court has said they must be given “some realistic opportunity to obtain release” before the end of their prison term.
“We can call it whatever you want but we have to have that ability to go back and look,” Kerner said.

While acknowledging a review process for the non-homicide juveniles is necessary, Bradley said he would strongly resist any type of review for the juveniles convicted of murder. He said that would impose an emotional burden on the families of the crime victims, calling it unfair “to bring them back for a hearing and to go relive the crime over and over again.”

Under Bradley’s previous legislation, juveniles could be sentenced to a life sentences for murder if the judge weighed some 10 factors in the sentencing, including the offender’s level of maturity and the nature of the crime. The U.S. Supreme Court ruling has called for “individualized sentencing decisions” for juveniles based on the argument that they were different from adult offenders.

September 29, 2013

This new Boston Globe editorial argues that the top US prosecutor ought not seek the punishment of death for the last living Boston Marathon bomber. Here is part of the paper's pitch:

In the raw days after the Marathon bombing in April, Mayor Tom Menino spoke for many Bostonians when he raised the prospect of executing those who were responsible. Though normally a death penalty opponent, Menino said that the barbarity of the attackers, who killed four people and maimed dozens, might sway him.

Now, as surviving suspect Dzhokhar Tsarnaev faces trial, that question looms for federal prosecutors, who are in the midst of a lengthy process to decide by Oct. 31 whether to seek the 19-year-old’s death by lethal injection. It’s certainly understandable why many friends, family, and supporters of the victims hope prosecutors will seek the ultimate vengeance against the man they believe masterminded the bombing along with his older brother, Tamerlan. Still, Attorney General Eric H. Holder Jr. should decide against it....

In addition to the extra cost of capital prosecutions — cases can exceed $10 million — death penalty cases drag on for years, through numerous appeals. Such lengthy proceedings would ensure that the Marathon bombing case lingers in the spotlight, compounding the sense of injury to victims. Many people would feel compelled to defend Tsarnaev on the basis of his youth, lack of past offenses, and being under the influence of his older brother — all factors that would mitigate against a death sentence. Years of proceedings, and their potential culmination in a death sentence, would also give Tsarnaev what he and his brother apparently sought: publicity and notoriety. Much better to let Tsarnaev slip into obscurity in a federal prison cell, and stay there.

It’s possible that prosecutors are keeping the death penalty on the table primarily to use as leverage against Tsarnaev, hoping that he will agree to plead guilty, skip a trial, and accept life imprisonment in order to save his life. Such a strategy raises worries about fairness under any circumstances, since it puts enormous pressure on defendants to give up their right to a trial. In this case, it’s also unnecessary. The evidence against Tsarnaev is overwhelming, and prosecutors should have nothing to fear from bringing the case to trial.

Beyond the details of this particular case, of course, lies the deeper question of whether the death penalty itself is ever right. There is no national consensus on the death penalty, and Holder needs to be sensitive to differences of public opinion. The bombing was a terrorist act aimed at this Commonwealth, where the death penalty has been repeatedly debated and repeatedly rejected. A recent Globe poll found that Boston residents oppose the death penalty for Tsarnaev by a solid margin. Of course, the attorney general should be under no legal obligation to consider the temper of the city. But perhaps it will give him the cover to make the right call. If Massachusetts can reject the death penalty, even after the most awful crimes, so can Holder.

Did Louisiana really give Corey Ladd "20 years hard labor" for possessing less than an ounce of marijuana?

The question in the title of this post is prompted by this recent commentary by Bill Quigley at Dissident Voice headlined "Half Ounce of Pot Gets Louisiana Man Twenty Years in Prison." I have now seen this story of an extreme sentence for a minor marijuana offense reprinted and repeated in various ways via various news sources and blogs, but I cannot find any materials that provide more information or context about this case other than these details reported via the commentary:

While Colorado and Washington have de-criminalized recreational use of marijuana and twenty states allow use for medical purposes, a Louisiana man was sentenced to twenty years in prison in New Orleans criminal court for possessing 15 grams, .529 of an ounce, of marijuana.

Corey Ladd, 27, had prior drug convictions and was sentenced September 4, 2013 as a “multiple offender to 20 years hard labor at the Department of Corrections.”

Marijuana use still remains a ticket to jail in most of the country and prohibition is enforced in a highly racially discriminatory manner. A recent report of the ACLU, “The War on Marijuana in Black and White,” documents millions of arrests for marijuana and shows the “staggeringly disproportionate impact on African Americans.”...

Louisiana arrests about 13,000 people per year for marijuana, 60% of them African Americans. Over 84 percent were for possession only. While Louisiana’s population is 32 percent black, 60 percent of arrests for marijuana are African American making it the 9th most discriminatory state nationwide. In Tangipahoa Parish, blacks are 11.8 times more likely to be arrested for marijuana than whites and in St. Landry Parish the rate of black arrests for marijuana is 10.7 times as likely as whites, landing both parishes in the worst 15 in the country.

In Louisiana, a person can get up to six months in jail for first marijuana conviction, up to five years in prison for the second conviction and up to twenty years in prison for the third. In fact, the Louisiana Supreme Court recently overturned a sentence of five years as too lenient for a fourth possession of marijuana and ordered the person sentenced to at least 13 years....

Arrests and jail sentences continue even though public opinion has moved against it. National polling by the Pew Research Center show a majority of people support legalizing the use of marijuana. Even in Louisiana, a recent poll by Public Policy Polling found more than half support legalization and regulation of marijuana.

Karen O’Keefe, who lived in New Orleans for years and now works as Director of State Policies at the Marijuana Policy Project, said “A sentence of 20 years in prison for possessing a substance that is safer that alcohol is out of step with Louisiana voters, national trends, and basic fairness and justice. Limited prison space and prosecutors’ time should be spent on violent and serious crime, not on prosecuting and incarcerating people who use a substance that nearly half of all adults have used.”

Defense lawyers are appealing the twenty year sentence for Mr. Ladd, but the hundreds of thousands of marijuana arrests continue each year. This insanity must be stopped.

The Louisiana Supreme Court case referenced in this commentary is Louisiana v. Noble, No. 12-K-1923 (La. April 19, 2013) (available here), and the Noble court did in fact rule that Louisiana's Habitual Offender Law demanded imposition of a mandatory prison term of 13.3 years for a defendant who "was convicted of a fourth offense possession of marijuana and adjudicated as a third felony offender based on two prior guilty pleas to possession of cocaine" and even though "defendant supports seven children, two of whom have significant medical problems, and ... all of the defendant’s offenses have been non-violent ... and all involved the possession of small quantities of narcotics."

The Noble case documents that at least some defendants are, despite claims by supporters of the modern drug war, that nobody really serves long terms of imprisonment merely for possessing marijuana. But the opinion in Noble does not reveal just how much much marijuana the defendant in that case possessed, and perhaps the possession offense there involved a significant quantity.

This case involving Corey Ladd surely also involves application of Louisiana's Habitual Offender Law because subsection 4(a) of that law provides a mandatory minimum of 20 years for the "fourth or subsequent felony." And I suspect the sentencing court felt obligated to give the 20-year term because the Noble court reversed another sentencing court for trying to go below the applicable mandatory minimum. But I am still gobsmacked that possessing such a small amount of marijuana in the Bayou could be a felony and in turn require the imposition of a 20-year prison term for a habitual offender.

"Life Without Parole as a Conflicted Punishment"

Life without parole (LWOP) has displaced the death penalty as the distinctive American punishment. Although the sentence scarcely exists in Europe, roughly 40,000 inmates are serving LWOP in America today. Despite its prevalence, the sentence has received little academic scrutiny. This has begun to change, a development sparked by a pair of Supreme Court cases, Graham v. Florida (2010) and Miller v. Alabama (2012), which express European-styled reservations with America’s embrace of LWOP. Both opinions, like the nascent academic commentary, lament the irrevocability of the sentence and the expressive judgment purportedly conveyed -- that a human being is so incorrigible that the community brands him with the mark of Cain and banishes him forever from our midst. In the tamer language of the Graham opinion, LWOP “forswears altogether the rehabilitative ideal.”

This Article tests whether that phrase is a fair characterization of LWOP today, and concludes that the Graham Court’s treatment of LWOP captures only a partial truth. Life without parole, the Article argues, is a conflicted punishment. The community indulges its thirst for revenge when imposing the sentence, but over time softer impulses insinuate themselves. LWOP is in part intended as a punishment of incalculable cruelty, more horrible than a prison term of many years, and on par with or worse than death itself. In practice, however, LWOP also emerges as a softer punishment, accommodating a concern for the inmate’s humanity and a hope for his rehabilitation.